In Williams v. State, --- S.E.2d ----, 2011 WL 3925582 (Ga.App.) the prosecutor erroneously stated in closing arguments that the defendant had consumed margaritas, when in fact the defendant had admitted consuming 2 1/2 beers. This error was not discovered by the defense until the jury began deliberating. The state offered to have a mistrial, but the defense simply wanted the videotape of the defendant replayed before the jury, where the defendant's true statement would appear. The judge refused to allow a reply of the video. Thereafter, the defense also moved for a mistrial, which was granted.
Prior to retrial, the defense then moved for a dismissal under double jeopardy (i.e. motion for plea in bar) claiming that the prosecutor goaded defendant into asking for a mistrial. On appeal, the law was discussed as follows:
"As an initial matter, to the extent that Williams subsequently consented to and joined in the State's motion for a mistrial, he could not later use the mistrial as the basis for a plea of double jeopardy. See Bellew v. State, 304 Ga.App. 529, 532(1), 697 S.E.2d 249 (2010). Notwithstanding Williams's contention that he was goaded into joining the mistrial motion, no basis for reversal has been shown. Where, as here, a mistrial is granted at the request of a criminal defendant, retrial is not prohibited on the basis of double jeopardy unless it is established that the State intended to goad the defendant into moving for a mistrial in order for the State to avoid a reversal due to prosecutorial or judicial error, or otherwise to obtain a more favorable chance of a guilty verdict on retrial."
Holding that the retrial was not prohibited by double jeopardy, the court wrote:
"The record in this case supports the trial court's finding that the prosecutor's mistake was unintentional and was not intended to goad Williams's counsel into moving for a mistrial. The record reflects that the prosecutor's mistake was neither blatant, deliberate, nor made in bad faith. No objection was raised at the time that the mistake was made. And when Williams's counsel later discovered and raised the issue, he likewise expressed a belief that the prosecutor's misstatement was “unintentional” and that “the prosecution didn't make th[e] error to goad [the defense] into moving to mistrial[.]” The evidence thus reflects that “[a]lthough the prosecutor was mistaken or confused as to the [evidence regarding the type of alcoholic beverage that Williams consumed], the record shows the prosecutor's mistake[ ][was] made in good faith and reveals the state's intention was not to provoke mistrial.” (Citation and punctuation omitted.) State v. Oliver, 188 Ga.App. 47, 51(3), 372 S.E.2d 256 (1988). See also Mathis v. State, 276 Ga.App. 587, 588, 623 S.E.2d 674 (2005) (concluding that retrial was not barred since the prosecutor's improper comments during closing argument were not made with an objective to abort the trial and subvert double jeopardy protections).
"Moreover, “the prosecution had already built its case against the defendant and had no reason to abort the first trial by forcing a mistrial.” (Citation and punctuation omitted.) Oliver, supra, 188 Ga.App. at 52(3), 372 S.E.2d 256. Regardless of the type of alcoholic beverage that Williams had consumed, the evidence was sufficient to support the charged offenses. See OCGA §§ 40–6–181(b)(5), 40–6–253(b)(1), 40–6–391(a)(1) and (5). Under these circumstances, the prosecutor's mistaken argument appears to have been made in a zealous attempt to obtain a conviction, rather than to force a mistrial. See Roscoe v. State, 286 Ga. 325, 327, 687 S.E.2d 455 (2009) (affirming the denial of the defendant's plea in bar since the evidence established that the prosecutor's erroneous opening statements were made while aggressively seeking a conviction, not a mistrial); State v. Traylor, 281 Ga. 730, 734, 642 S.E.2d 700 (2007) (concluding that defendant's retrial was not barred since there was no evidence to support a finding that the prosecutor's misconduct was intended to terminate the trial, rather than enhance the likelihood of conviction).
"Since the evidence supports the trial court's findings that the prosecutor's mistake did not rise to the level of intentional prosecutorial misconduct and was not intended to subvert double jeopardy protections, we affirm the denial of Williams's plea in bar.
Editor's Note: What I found odd was the fact that the video did not go back with the jury so they could play it during deliberations - a practice commonly done in Illinois (over defense objections). I would be interested in hering what other courts do with video during jury deliberations...
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Showing posts with label Georgia. Show all posts
Showing posts with label Georgia. Show all posts
Wednesday, December 28, 2011
Monday, November 14, 2011
DUI Law - Georgia Decides Whether Arrest Occurred Prior to Test
Often, a quandary arises when a person is involved in a motor vehicle accident, and transported to the hospital. Is that person under arrest when the police officer interacts with them there? To get the blood into evidence, the answer must be yes. To get an admission into evidence without Miranda, the answer must be no. Hence, the old shell game begins.
In Buford v. State of Georgia, --- S.E.2d ----, 2011 WL 5248199 (Ga.App.), Buford lost control of the car he was driving in Cherokee County. The car flipped over and hit a tree. Emergency personnel transported Buford by helicopter to Grady Memorial Hospital and advised the trooper at the scene that Buford smelled of alcohol. The trooper, who assumed from the helicopter transport that Buford's condition was “pretty serious,” drove to Grady, where hospital personnel told him that Buford was conscious.
When the trooper entered the room on the early morning of June 19, Buford was “taped to the spine board,” had “tubes coming from every which direction,” and “had a [stabilizing] collar on.” His eyes were closed, and he was silent. The trooper, who could smell alcohol on Buford's breath and in the room, told Buford who he was and attempted to get Buford to respond, but concluded from Buford's silence that he was under the influence of alcohol. The trooper also learned that Buford was taking narcotics for back pain. The trooper then told Buford that he was “going to charge him with DUI” and read him the implied consent notice. Although Buford opened his eyes at one point during these proceedings, he remained silent throughout and appeared to the trooper to be going in and out of consciousness.
The charges, however, were not officially place until months later.
Because Georgia requires an arrest that precedes the implied consent warnings, even for admissibility of the result for the criminal trial, the defendant claimed that he was not arrested prior to the blood draw, and he sought suppression. Disagreeing the appellate court wrote:
"It is undisputed that at the time of his encounter with the trooper, Buford was secured to a board in a hospital room with tubes attached to his body. Even assuming that Buford was alert rather than coming in and out of consciousness at the time, a reasonable person in his situation could not have thought that he was free to leave when the trooper announced that he was charging him with DUI. “ ‘[A] defendant may voluntarily submit to being considered under arrest without any actual touching or show of force.’ “ Hough v. State, 279 Ga. 711, 716, 620 S.E.2d 380 (2005), quoting Clement v. State, 226 Ga. 66, 67(2), 172 S.E.2d 600 (1970). It follows that this trial court did not clearly err when it found that Buford was under arrest when the trooper announced that he was being charged with DUI. Lucas, 265 Ga.App. at 244, 593 S.E.2d 707 (affirming suppression of defendant's statement on the basis of trial court's factual finding that defendant's “freedom was significantly curtailed” at the time the statement was obtained); compare Hough, 279 Ga. at 717, 620 S.E.2d 380 (reversing trial court's finding that defendant was under arrest where there was “no indication of an arrest at [the time the implied consent notice was given,] whether by citation or otherwise”). 2. In light of the above, we need not determine whether Buford's injuries were serious enough to justify the administration of a blood test without the reading of the implied consent notice for the purpose of preserving evidence. See Hough, 279 Ga. at 713(1), 620 S.E.2d 380; Gilliam v. State, 295 Ga.App. 358, 671 S.E.2d 859 (2008)."
The trial court's denial of the motion to suppress was affirmed.
In Buford v. State of Georgia, --- S.E.2d ----, 2011 WL 5248199 (Ga.App.), Buford lost control of the car he was driving in Cherokee County. The car flipped over and hit a tree. Emergency personnel transported Buford by helicopter to Grady Memorial Hospital and advised the trooper at the scene that Buford smelled of alcohol. The trooper, who assumed from the helicopter transport that Buford's condition was “pretty serious,” drove to Grady, where hospital personnel told him that Buford was conscious.
When the trooper entered the room on the early morning of June 19, Buford was “taped to the spine board,” had “tubes coming from every which direction,” and “had a [stabilizing] collar on.” His eyes were closed, and he was silent. The trooper, who could smell alcohol on Buford's breath and in the room, told Buford who he was and attempted to get Buford to respond, but concluded from Buford's silence that he was under the influence of alcohol. The trooper also learned that Buford was taking narcotics for back pain. The trooper then told Buford that he was “going to charge him with DUI” and read him the implied consent notice. Although Buford opened his eyes at one point during these proceedings, he remained silent throughout and appeared to the trooper to be going in and out of consciousness.
The charges, however, were not officially place until months later.
Because Georgia requires an arrest that precedes the implied consent warnings, even for admissibility of the result for the criminal trial, the defendant claimed that he was not arrested prior to the blood draw, and he sought suppression. Disagreeing the appellate court wrote:
"It is undisputed that at the time of his encounter with the trooper, Buford was secured to a board in a hospital room with tubes attached to his body. Even assuming that Buford was alert rather than coming in and out of consciousness at the time, a reasonable person in his situation could not have thought that he was free to leave when the trooper announced that he was charging him with DUI. “ ‘[A] defendant may voluntarily submit to being considered under arrest without any actual touching or show of force.’ “ Hough v. State, 279 Ga. 711, 716, 620 S.E.2d 380 (2005), quoting Clement v. State, 226 Ga. 66, 67(2), 172 S.E.2d 600 (1970). It follows that this trial court did not clearly err when it found that Buford was under arrest when the trooper announced that he was being charged with DUI. Lucas, 265 Ga.App. at 244, 593 S.E.2d 707 (affirming suppression of defendant's statement on the basis of trial court's factual finding that defendant's “freedom was significantly curtailed” at the time the statement was obtained); compare Hough, 279 Ga. at 717, 620 S.E.2d 380 (reversing trial court's finding that defendant was under arrest where there was “no indication of an arrest at [the time the implied consent notice was given,] whether by citation or otherwise”). 2. In light of the above, we need not determine whether Buford's injuries were serious enough to justify the administration of a blood test without the reading of the implied consent notice for the purpose of preserving evidence. See Hough, 279 Ga. at 713(1), 620 S.E.2d 380; Gilliam v. State, 295 Ga.App. 358, 671 S.E.2d 859 (2008)."
The trial court's denial of the motion to suppress was affirmed.
Tuesday, June 28, 2011
DUI Appeal - Source Code Win in Georgia
In Davenport v. State of Georgia, --- S.E.2d ----, 2011 WL 2436668 (Ga.) the trial court denied a request for defendant's request for a certificate requesting the attendance in Georgia of an out-of-state witness, namely the Person in control of the source code for the Intoxilyzer 5000. On appeal, the Supreme Court of Georgia found that the trial court's determination that such a witness was not 'material' employed the wrong standard. The standard announced in the opinion states:
“a material witness is ‘a witness who can testify about matters having some logical connection with the consequential facts, esp. if few others, if any, know about these matters.“
The court then remanded the matter for further proceedings. Of additional interest however, was the concurring opinion, which is reproduced in full herein:
I join fully in the majority opinion and note that it may have two salutary effects. First, in Lattarulo v. State, 261 Ga. 124, 401 S.E.2d 516 (1991), this Court held that the results of breathalyzer tests conducted in accordance with the statutory scheme “may be admitted into evidence without expert testimony regarding the scientific theory behind the operation of the test.” Id. at 127, 401 S.E.2d 516. But the Court also said that “[a]n accused may always introduce evidence of the possibility of error or circumstances that might have caused the machine to malfunction,” with such evidence going to the weight of the breathalyzer results. Id. at 126, 401 S.E.2d 516. Under today's decision, defendants seeking to obtain such evidence from another state must still show the Georgia court that the evidence is “material” to their case as required by OCGA § 24–10–94(a), but they need not make the more demanding showing required by the now-disapproved Court of Appeals' decisions.
Second, by applying the correct “material witness” standard, trial courts may alleviate the due process concerns that may otherwise exist (but are not well presented in this appeal) when the State enacts a statutory scheme in which: (1) evidence usually determinative of the defendant's guilt (e.g., blood alcohol content in a per se DUI prosecution) is tested and reported, not by forensic experts who testify and face cross-examination on the reliability of their methods and the accuracy of their results, but rather by a machine (e.g., the Intoxilyzer 5000) that takes in a specimen from the defendant and, through internal mechanisms and computer code, generates a test report; (2) the machine's computer code is unavailable to the defendant through discovery or compulsory process because the State avoids possessing it in Georgia; (3) the machine's test result is admissible at trial through a witness who can say that he was qualified to operate the machine and it operated as designed (see, e.g., OCGA § 40–6–392(a)), but who has no knowledge about whether the machine was in fact designed to produce reliable and accurate results under the circumstances presented; and (4) the machine uses up the specimen, with nothing maintained for later confirmation or independent testing.
Lastly, the dissenting opinion stated in part:
"[T]here is no merit to Davenport's assertion that the trial court's ruling denies her constitutional rights to compulsory process, confrontation, due process of law, and a fair trial. The contention is based upon the premise that the I–5000 is Davenport's accuser, invoking the constitutional right of confrontation. However, as noted by the State, the I–5000 is simply a tool used by law enforcement to determine the breath-alcohol content of a driver who is suspected of driving under the influence. Davenport was adjudged guilty by the trial court on the basis of evidence, to which Davenport stipulated, some of which was reported by the I–5000 after it was certified to be fully operational. In the context of a challenge to the admission into evidence of an inspection certificate for the Intoxilyzer, this Court has determined that there is no violation of the right of confrontation. Rackoff v. State, 281 Ga. 306, 309(2), 637 S.E.2d 706 (2006); Brown v. State, 268 Ga. 76, 80, 485 S.E.2d 486 (1997); see also Jacobson v. State, 306 Ga.App. 815, 818(4), 703 S.E.2d 376 (2010). This is so, in part, because an inspection certificate, like a computer source code, is not testimonial in nature; it is part of the regular course of business regarding operation of the I–5000, and it is not utilized in an investigatory or adversarial setting or generated in anticipation of the prosecution of a particular defendant. Rackoff v. State, supra at 309(2), 637 S.E.2d 706.
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“a material witness is ‘a witness who can testify about matters having some logical connection with the consequential facts, esp. if few others, if any, know about these matters.“
The court then remanded the matter for further proceedings. Of additional interest however, was the concurring opinion, which is reproduced in full herein:
I join fully in the majority opinion and note that it may have two salutary effects. First, in Lattarulo v. State, 261 Ga. 124, 401 S.E.2d 516 (1991), this Court held that the results of breathalyzer tests conducted in accordance with the statutory scheme “may be admitted into evidence without expert testimony regarding the scientific theory behind the operation of the test.” Id. at 127, 401 S.E.2d 516. But the Court also said that “[a]n accused may always introduce evidence of the possibility of error or circumstances that might have caused the machine to malfunction,” with such evidence going to the weight of the breathalyzer results. Id. at 126, 401 S.E.2d 516. Under today's decision, defendants seeking to obtain such evidence from another state must still show the Georgia court that the evidence is “material” to their case as required by OCGA § 24–10–94(a), but they need not make the more demanding showing required by the now-disapproved Court of Appeals' decisions.
Second, by applying the correct “material witness” standard, trial courts may alleviate the due process concerns that may otherwise exist (but are not well presented in this appeal) when the State enacts a statutory scheme in which: (1) evidence usually determinative of the defendant's guilt (e.g., blood alcohol content in a per se DUI prosecution) is tested and reported, not by forensic experts who testify and face cross-examination on the reliability of their methods and the accuracy of their results, but rather by a machine (e.g., the Intoxilyzer 5000) that takes in a specimen from the defendant and, through internal mechanisms and computer code, generates a test report; (2) the machine's computer code is unavailable to the defendant through discovery or compulsory process because the State avoids possessing it in Georgia; (3) the machine's test result is admissible at trial through a witness who can say that he was qualified to operate the machine and it operated as designed (see, e.g., OCGA § 40–6–392(a)), but who has no knowledge about whether the machine was in fact designed to produce reliable and accurate results under the circumstances presented; and (4) the machine uses up the specimen, with nothing maintained for later confirmation or independent testing.
Lastly, the dissenting opinion stated in part:
"[T]here is no merit to Davenport's assertion that the trial court's ruling denies her constitutional rights to compulsory process, confrontation, due process of law, and a fair trial. The contention is based upon the premise that the I–5000 is Davenport's accuser, invoking the constitutional right of confrontation. However, as noted by the State, the I–5000 is simply a tool used by law enforcement to determine the breath-alcohol content of a driver who is suspected of driving under the influence. Davenport was adjudged guilty by the trial court on the basis of evidence, to which Davenport stipulated, some of which was reported by the I–5000 after it was certified to be fully operational. In the context of a challenge to the admission into evidence of an inspection certificate for the Intoxilyzer, this Court has determined that there is no violation of the right of confrontation. Rackoff v. State, 281 Ga. 306, 309(2), 637 S.E.2d 706 (2006); Brown v. State, 268 Ga. 76, 80, 485 S.E.2d 486 (1997); see also Jacobson v. State, 306 Ga.App. 815, 818(4), 703 S.E.2d 376 (2010). This is so, in part, because an inspection certificate, like a computer source code, is not testimonial in nature; it is part of the regular course of business regarding operation of the I–5000, and it is not utilized in an investigatory or adversarial setting or generated in anticipation of the prosecution of a particular defendant. Rackoff v. State, supra at 309(2), 637 S.E.2d 706.
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Thursday, May 19, 2011
DUI Appeal - Georgia Requires Right to Independent Test or Suppression Occurs
In State of Georgia v. Davis, --- S.E.2d ----, 2011 WL 1843166 (Ga.App.), the trial court suppressed the State's breath test on the basis of a failure to reasonably accommodate the defendant's request for an independent test. The facts indicated that the defendant Davis was arrested after being stopped at a roadblock:
In finding a lack of reasonable accommodation, the appeals court first set out the 'reasonable accommodation test' as follows:
Here, the trial court had previously found that:
In affirming suppression, the appeals court concluded:
We are not persuaded by the State's argument that Davis withdrew her request for an independent blood test after Officer Johnson advised her that she would have to pay for the test but failed to allow her the opportunity to make other payment arrangements. As we have previously stated,
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Davis initially refused to submit to the State-administered chemical breath test, but she then agreed to do so. Davis did, however, request a blood test, and she reiterated her request after she completed the chemical breath test. Johnson told Davis that he would “be glad to take her to get a blood test” and that she should choose the location for the test. When Davis indicated that she didn't know where she wanted to take the test, Johnson suggested two hospitals in the area, St. Mary's or Athens Regional. The officer also told Davis that she would have to pay for the test. According to Johnson, he was unfamiliar with the payment protocol at St. Mary's and Athens Regional, but the hospitals where he had taken previous suspects for independent chemical tests required payment at the time of the tests. Davis then explained that her purse was in the passenger's vehicle, which was no longer at the scene, and that she therefore could not pay for a blood test. Thereafter, Davis changed her request for a blood test to a second breath test, and when Johnson asked where she wanted to have it administered, Davis stated that she wanted to take it “here,” at the scene. Davis then asked if the officer would drop the charges if the second test indicated that her blood alcohol was under the legal limit, and he replied negatively; Davis then withdrew her request for another breath test.
In finding a lack of reasonable accommodation, the appeals court first set out the 'reasonable accommodation test' as follows:
The factors to be considered by the trial court in determining whether an officer reasonably accommodated an accused motorist's request for an additional chemical test include, but are not limited to: (1) availability of or access to funds or resources to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the request; (3) availability of police time and other resources; (4) location of the requested facilities, e.g., whether the requested facility is in a different jurisdiction; and (5) opportunity and ability of accused to make arrangements personally for the testing.
Here, the trial court had previously found that:
[A]fter Davis requested an independent blood test, Johnson told her that she would have to pay for the test (even though he did not know the protocol regarding payment at either of the local hospitals). However, her purse was in the vehicle she had been driving, which had since been driven from the location, and she told Trooper Johnson that she did not have money to pay. The State offered no evidence to show that the Defendant was afforded the opportunity to have her purse brought back to the scene or was given another opportunity to make arrangements to pay for the test. Under these circumstances, the officer did not reasonably accommodate the Defendant's request, and the results of the State-administered breath test are inadmissible.
In affirming suppression, the appeals court concluded:
We are not persuaded by the State's argument that Davis withdrew her request for an independent blood test after Officer Johnson advised her that she would have to pay for the test but failed to allow her the opportunity to make other payment arrangements. As we have previously stated,
the police cannot escape the duty to reasonably accommodate individuals who have invoked the right to an additional test simply because such individuals fail to insist on alternatives, especially when they have not been instructed of their responsibility to make such arrangements and that failure to do so results in a waiver. It must be remembered that such individuals are in police custody and do not have free reign to dictate their own actions. Because of the very nature of the arrest, their faculties are often impaired, and their actions are largely dictated by the instructions given to them by the police.
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Sunday, April 17, 2011
DUI Appeal - When is a Georgia roadblock an illegal roving patrol?
In Owens v. State of Georgia, --- S.E.2d ----, 2011 WL 816624 (Ga.App.), the defendant argued that the roadblock was the result of an unauthorized, “on-the-fly” decision made jointly by an alleged supervisor and his field officers and that the roadblock was, essentially, an improper “roving patrol” of officers who illegally stopped and detained motorists. The court recited applicable law that:
"In general, a seizure is unreasonable absent some individualized suspicion of a crime. City of Indianapolis v. Edmond, 531 U.S. at 37(II); Thomas v. State, 277 Ga.App. at 89-90. As a result, “roving patrols in which officers exercise [ ] unfettered discretion to stop drivers in the absence of some articulable suspicion” are unconstitutional. (Citation omitted.) Thomas v. State, 277 Ga.App. at 90. A limited exception to the rule requiring individualized suspicion, however, allows standardized highway checkpoints or roadblocks that serve legitimate law enforcement objectives and that impose minimal intrusions on the motoring public. City of Indianapolis v. Edmond, 531 U.S. at 41-42(III); LaFontaine v. State, 269 Ga. 251, 253(3) (497 S.E.2d 367) (1998)."
To justify a traffic stop under this exception, the State must prove that a highway roadblock program “was implemented at the programmatic level [[FN3] for a legitimate primary purpose,” that is, that the roadblock was ordered by a supervisor, rather than by officers in the field, and was “implemented to ensure roadway safety rather than as a constitutionally impermissible pretext aimed at discovering general evidence of ordinary crime.” FN4 (Citations omitted.) Hobbs v. State, 260 Ga.App. 115, 116(1) (579 S.E.2d 50) (2003). “Elevating the roadblock decision from the officers in the field to the supervisory level limits the exercise of discretion by the officers in the field .” Thomas v. State, 277 Ga.App. at 90.
Georgia's courts have not yet precisely defined what it means for a decision to be made at the “programmatic level.” See Jacobs v. State, --- Ga.App. ----, ----, n. 6 (Case No. A11A0107, decided February 28, 2011). Here, the roadblock was approved by a Sergeant. The order for the roadblock was issued by Sergeant Michael C. Johnson post commander of Post 7 of the Georgia State Patrol, Toccoa, Georgia.... Sgt. Johnson is in fact the commanding officer for the field officers at his Post and his duties include “Initiating road-checks[.]” [FN5] ... Sgt. Johnson initiated the roadblock verbally and the decision was made by him alone.[[FN6] ... Sgt. Johnson [then] supervised the roadblock. The court also found that, when Sgt. Johnson verbally initiated the roadblock on August 15, 2008, he called into the radio operator to report the roadblock. The roadblock approval form, which was admitted into evidence without objection, stated the reasons for the roadblock on August 15, 2008, and the court found that the information on the form did not conflict with any evidence presented as to when the roadblock was to be conducted or by whom it was authorized.
In addition, the appeals court held that the State must prove that:
"all vehicles [were] stopped as opposed to random vehicle stops; the delay to motorists [was] minimal; the roadblock operation [was] well identified as a police checkpoint; and the screening officer's training and experience [was] sufficient to qualify him [or her] to make an initial determination as to which motorists should be given field tests for intoxication."
The appeals court found that the roadblock was not unlawful:
"Contrary to Owens' contentions, there is no evidence in this case that Sgt. Johnson spontaneously decided in the field to conduct the roadblock or that the roadblock had any other characteristic of a “roving patrol.” Instead, given the evidence presented, the trial court was authorized to conclude that Sgt. Johnson properly initiated, authorized, and supervised the roadblock and that his decision to implement the roadblock was made at the programmatic level for a legitimate primary purpose."
Additionally, the defendant claimed that the trial court erred in finding that his detention by the officers was not excessive under the circumstances. Georgia law applies Miranda to filed sobriety testing post-arrest:
"When a violator is placed in custody or under arrest at a traffic stop, the protection of Miranda[ arises. Thus, if an officer gives a field sobriety test to a person who is in custody or under arrest but who had not been warned of his right against self-incrimination, then the test results are inadmissible. Conversely, if the person is not in custody when he takes a field sobriety test, the results are generally admissible[,] even if the person had not been warned of his Miranda rights. The test to determine whether a detainee is in custody for Miranda purposes is whether a reasonable person in the detainee's position would have thought the detention would not be temporary. The safeguards prescribed by Miranda become applicable only after a detainee's freedom of action is curtailed to a degree associated with formal arrest. The rationale behind the holding is that although an ordinary traffic stop curtails the freedom of action of the detained motorist and imposes some pressures on the detainee to answer questions, such pressures do not sufficiently impair the detainee's exercise of his privilege against self-incrimination so as to require that he be advised of his constitutional rights. The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court's determination will not be disturbed unless it is clearly erroneous."
The appeals court found that the 20 minute delay at the roadblock was not 'custodial':
"As the trial court in this case found, the arresting officer
detained [Owens] for [20] minutes after the initial portable breath test to conduct an additional test. The reason given by the arresting officer was that [Owens] admitted he had something to drink recently and there could be residual mouth alcohol. Not until after the [20] minute wait and after the second portable breath test was possible was [Owens] placed under arrest.... The [20] minute delay was for the benefit of [Owens] to insure that the portable alcohol test was not affected by residual alcohol due to [Owens'] recent consumption of alcoholic beverages."
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"In general, a seizure is unreasonable absent some individualized suspicion of a crime. City of Indianapolis v. Edmond, 531 U.S. at 37(II); Thomas v. State, 277 Ga.App. at 89-90. As a result, “roving patrols in which officers exercise [ ] unfettered discretion to stop drivers in the absence of some articulable suspicion” are unconstitutional. (Citation omitted.) Thomas v. State, 277 Ga.App. at 90. A limited exception to the rule requiring individualized suspicion, however, allows standardized highway checkpoints or roadblocks that serve legitimate law enforcement objectives and that impose minimal intrusions on the motoring public. City of Indianapolis v. Edmond, 531 U.S. at 41-42(III); LaFontaine v. State, 269 Ga. 251, 253(3) (497 S.E.2d 367) (1998)."
To justify a traffic stop under this exception, the State must prove that a highway roadblock program “was implemented at the programmatic level [[FN3] for a legitimate primary purpose,” that is, that the roadblock was ordered by a supervisor, rather than by officers in the field, and was “implemented to ensure roadway safety rather than as a constitutionally impermissible pretext aimed at discovering general evidence of ordinary crime.” FN4 (Citations omitted.) Hobbs v. State, 260 Ga.App. 115, 116(1) (579 S.E.2d 50) (2003). “Elevating the roadblock decision from the officers in the field to the supervisory level limits the exercise of discretion by the officers in the field .” Thomas v. State, 277 Ga.App. at 90.
Georgia's courts have not yet precisely defined what it means for a decision to be made at the “programmatic level.” See Jacobs v. State, --- Ga.App. ----, ----, n. 6 (Case No. A11A0107, decided February 28, 2011). Here, the roadblock was approved by a Sergeant. The order for the roadblock was issued by Sergeant Michael C. Johnson post commander of Post 7 of the Georgia State Patrol, Toccoa, Georgia.... Sgt. Johnson is in fact the commanding officer for the field officers at his Post and his duties include “Initiating road-checks[.]” [FN5] ... Sgt. Johnson initiated the roadblock verbally and the decision was made by him alone.[[FN6] ... Sgt. Johnson [then] supervised the roadblock. The court also found that, when Sgt. Johnson verbally initiated the roadblock on August 15, 2008, he called into the radio operator to report the roadblock. The roadblock approval form, which was admitted into evidence without objection, stated the reasons for the roadblock on August 15, 2008, and the court found that the information on the form did not conflict with any evidence presented as to when the roadblock was to be conducted or by whom it was authorized.
In addition, the appeals court held that the State must prove that:
"all vehicles [were] stopped as opposed to random vehicle stops; the delay to motorists [was] minimal; the roadblock operation [was] well identified as a police checkpoint; and the screening officer's training and experience [was] sufficient to qualify him [or her] to make an initial determination as to which motorists should be given field tests for intoxication."
The appeals court found that the roadblock was not unlawful:
"Contrary to Owens' contentions, there is no evidence in this case that Sgt. Johnson spontaneously decided in the field to conduct the roadblock or that the roadblock had any other characteristic of a “roving patrol.” Instead, given the evidence presented, the trial court was authorized to conclude that Sgt. Johnson properly initiated, authorized, and supervised the roadblock and that his decision to implement the roadblock was made at the programmatic level for a legitimate primary purpose."
Additionally, the defendant claimed that the trial court erred in finding that his detention by the officers was not excessive under the circumstances. Georgia law applies Miranda to filed sobriety testing post-arrest:
"When a violator is placed in custody or under arrest at a traffic stop, the protection of Miranda[ arises. Thus, if an officer gives a field sobriety test to a person who is in custody or under arrest but who had not been warned of his right against self-incrimination, then the test results are inadmissible. Conversely, if the person is not in custody when he takes a field sobriety test, the results are generally admissible[,] even if the person had not been warned of his Miranda rights. The test to determine whether a detainee is in custody for Miranda purposes is whether a reasonable person in the detainee's position would have thought the detention would not be temporary. The safeguards prescribed by Miranda become applicable only after a detainee's freedom of action is curtailed to a degree associated with formal arrest. The rationale behind the holding is that although an ordinary traffic stop curtails the freedom of action of the detained motorist and imposes some pressures on the detainee to answer questions, such pressures do not sufficiently impair the detainee's exercise of his privilege against self-incrimination so as to require that he be advised of his constitutional rights. The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court's determination will not be disturbed unless it is clearly erroneous."
The appeals court found that the 20 minute delay at the roadblock was not 'custodial':
"As the trial court in this case found, the arresting officer
detained [Owens] for [20] minutes after the initial portable breath test to conduct an additional test. The reason given by the arresting officer was that [Owens] admitted he had something to drink recently and there could be residual mouth alcohol. Not until after the [20] minute wait and after the second portable breath test was possible was [Owens] placed under arrest.... The [20] minute delay was for the benefit of [Owens] to insure that the portable alcohol test was not affected by residual alcohol due to [Owens'] recent consumption of alcoholic beverages."
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Friday, April 15, 2011
DUI Appeal - Georgia Source Code, Per Se, and Intoxilyzer Issues
In Holowiak v. State of Georgia, --- S.E.2d ----, 2011 WL 1123539 (Ga.App.) the defendant was originally charged with both driving under the influence (DUI), and driving with a BAC over 0.08 (per se). He was found not guilty of DUI, and the jury hung on the per se. On retrial of the per se count, the defendant was convicted. The defendant appeals based on two issues: the admissibility of impairment evidence and SFSTs when the defendant is only charged with a per se violation, and the refusal of the court to issue a subpoena for the source code to the Intoxilyzer 500 manufacturer, CMI Inc.
On appeal, the Court approved of use of the evidence of impairment and performance on the SFSTs in order to establish the validity of the breath test as follows:
“Field sobriety tests are not designed to detect the mere presence of alcohol in a person's system, but to produce information” about the quantity of alcohol in the system. Kirkland v. State, 253 Ga.App. 414, 416 (559 S.E.2d 161) (2002) (officer's testimony that HGN test correlated with Intoxilyzer results was relevant and admissible). "
Additionally:
"The officer testified that, based on his years of training and experience, he concluded that Holowiak's performance on the field sobriety tests was consistent with a test result of .125 from the Intoxilyzer. Thus, the evidence of his field sobriety test was relevant to counter Holowiak's attacks on the accuracy of the breath test. Likewise, the evidence of Holowiak's impairment was relevant to establish the facts that were the basis for the DUI arrest."
The defendant also complained that the trial court erred in refusing to approve of an out-of-state subpoena to CMI to compel production of the source code for the Intoxilyzer 5000. The court discussed the relevance of the issue as follows:
In Stetz v. State, 301 Ga.App. 458, 461 (687 S.E.2d 839) (2009), this Court defined the scope of “full information” to which a DUI defendant is entitled under OCGA § 40–6–392(a)(4) when the test of a person's blood alcohol concentration is determined by an Intoxilyzer machine. We held,
Unlike the gas chromatography test, which produces data that has to be interpreted by a chemist to determine blood alcohol level, an intoxilyzer does not produce raw data but rather prints out the actual test result showing the person's blood alcohol level. In other words, the machine computes the test result. Therefore the only discoverable information from an intoxilyzer test under OCGA § 40–6–392(a)(4) is the computer printout of the test result.
Additionally, the appeals court found that the source code evidence was speculative at best:
"The information would be used, among other things, to “determine the accuracy, reliability and admissibility of the results” of Holowiak's breath test. Although Holowiak noted that there were pending allegations in other states of “problems with the Intoxilyzer 5000 breath test results based upon breathing patterns,” and that the information would be used “as applied to [his] particular health and physical issues,” he did not allege that he actually had a physical or health issue that might affect the results of the breath test, much less present any evidence about it."
Thus, the appeals court affirmed the defendant's conviction.
NOTE: The case implicitly authorizes the defense to use SFSTs and other non-impairment evidence as a defense to a breath test's validity. Additionally, it is my suspicion that the defense attorney offered many more ways that the source code was relevant, but that the appeals court seized only on the arguments that were more speculative, in order to sustain the trial court's original ruling.
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On appeal, the Court approved of use of the evidence of impairment and performance on the SFSTs in order to establish the validity of the breath test as follows:
“Field sobriety tests are not designed to detect the mere presence of alcohol in a person's system, but to produce information” about the quantity of alcohol in the system. Kirkland v. State, 253 Ga.App. 414, 416 (559 S.E.2d 161) (2002) (officer's testimony that HGN test correlated with Intoxilyzer results was relevant and admissible). "
Additionally:
"The officer testified that, based on his years of training and experience, he concluded that Holowiak's performance on the field sobriety tests was consistent with a test result of .125 from the Intoxilyzer. Thus, the evidence of his field sobriety test was relevant to counter Holowiak's attacks on the accuracy of the breath test. Likewise, the evidence of Holowiak's impairment was relevant to establish the facts that were the basis for the DUI arrest."
The defendant also complained that the trial court erred in refusing to approve of an out-of-state subpoena to CMI to compel production of the source code for the Intoxilyzer 5000. The court discussed the relevance of the issue as follows:
In Stetz v. State, 301 Ga.App. 458, 461 (687 S.E.2d 839) (2009), this Court defined the scope of “full information” to which a DUI defendant is entitled under OCGA § 40–6–392(a)(4) when the test of a person's blood alcohol concentration is determined by an Intoxilyzer machine. We held,
Unlike the gas chromatography test, which produces data that has to be interpreted by a chemist to determine blood alcohol level, an intoxilyzer does not produce raw data but rather prints out the actual test result showing the person's blood alcohol level. In other words, the machine computes the test result. Therefore the only discoverable information from an intoxilyzer test under OCGA § 40–6–392(a)(4) is the computer printout of the test result.
Additionally, the appeals court found that the source code evidence was speculative at best:
"The information would be used, among other things, to “determine the accuracy, reliability and admissibility of the results” of Holowiak's breath test. Although Holowiak noted that there were pending allegations in other states of “problems with the Intoxilyzer 5000 breath test results based upon breathing patterns,” and that the information would be used “as applied to [his] particular health and physical issues,” he did not allege that he actually had a physical or health issue that might affect the results of the breath test, much less present any evidence about it."
Thus, the appeals court affirmed the defendant's conviction.
NOTE: The case implicitly authorizes the defense to use SFSTs and other non-impairment evidence as a defense to a breath test's validity. Additionally, it is my suspicion that the defense attorney offered many more ways that the source code was relevant, but that the appeals court seized only on the arguments that were more speculative, in order to sustain the trial court's original ruling.
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Tuesday, March 01, 2011
DUI Appeal of the Day (DAD) - Roadblock approved by Field Captain
In Jacobs v. State, --- S.E.2d ----, 2011 WL 677949 (Ga.App.) the defendant challenged his arrest for DUI by claiming that a highway roadblock that was implemented by a field officer, rather than by a supervisor at the programmatic level, and, therefore, that the trial court erred in denying his motion to suppress evidence obtained as a result of that roadblock. The person who implemented and approved the roadblock was Captain Crawshaw. As a captain, Crawshaw was the senior officer in the field, charged with supervising a shift that consisted of herself, a lieutenant, and at least five officers. Above Crawshaw in the chain of command were one of four majors and the chief of police, who decide the policies within the departments. The Fayetteville Police Chief established departmental uniform goals, pursuant to which each shift would conduct a certain number of road safety checks per quarter. Before July 25, 2009, Crawshaw discussed the uniform goals generally, along with the prescribed procedure for conducting a roadblock, with the chief and the majors. As a shift supervisor, Crawshaw was authorized by her superiors to plan and implement roadblocks. Although she obtained some input from her subordinates, Crawshaw did not obtain prior approval, either written or verbal, from her superiors of her plan to have a roadblock on July 25, 2009.
The State must prove that a highway roadblock program “was implemented at the programmatic level for a legitimate primary purpose,” that is, that the roadblock was ordered by a supervisor rather than by officers in the field and was “implemented to ensure roadway safety rather than as a constitutionally impermissible pretext aimed at discovering general evidence of ordinary crime.”
The Georgia court found that the captain was a 'supervisor at the programmatic level' as contemplated under the law:
Applying controlling precedents, we conclude that Crawshaw was a supervisor by virtue of the fact that her rank and job duties required her to supervise the work of a number of officers of subordinate rank, even though she supervised those subordinates in the field, rather than from behind a desk, and even though she initially screened Jacobs at the roadblock.
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The State must prove that a highway roadblock program “was implemented at the programmatic level for a legitimate primary purpose,” that is, that the roadblock was ordered by a supervisor rather than by officers in the field and was “implemented to ensure roadway safety rather than as a constitutionally impermissible pretext aimed at discovering general evidence of ordinary crime.”
The Georgia court found that the captain was a 'supervisor at the programmatic level' as contemplated under the law:
Applying controlling precedents, we conclude that Crawshaw was a supervisor by virtue of the fact that her rank and job duties required her to supervise the work of a number of officers of subordinate rank, even though she supervised those subordinates in the field, rather than from behind a desk, and even though she initially screened Jacobs at the roadblock.
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